Opinion
Civil Action No. 04-962.
May 13, 2004
MEMORANDUM
This case is presently before the Court on a Motion to Remand On February 10, 2004, Plaintiffs, Anthony and Penny Caciolo, filed a Complaint in the Pennsylvania Court of Common Pleas. In their Complaint, Plaintiffs named the following defendants:
(1) American Aluminum and Insulation Co. of Behtlehem, Inc.;
(2) Masco Contractor Services East, Inc., individually and t/a American Aluminum and Insulation Company of Bethlehem, Inc.;
(3) Ameralum, Inc., individually and t/a American Aluminum and Insulation Co. of Bethlehem, Inc.; and
(4) Cary Corporation, individually and t/a American Aluminum and Insulation Co. of Bethlehem, Inc.
On March 4, 2004, Defendants filed to remove this matter to federal court. Defendants' basis for removal is diversity of citizenship pursuant to 28 U.S.C. § 1332(a). Defendants, in their Notice of Removal, which they later supplemented with the Declaration of Thomas D. Jarvis, the Vice President of Finance for Masco Contractor Services East, Inc., state that Plaintiffs are residents of Pennsylvania and that the only Defendant currently in existence, Masco Contractor Services, East, Inc., is a resident of Delaware and New Jersey, thereby meeting the requirements for complete diversity. In support of this contention, Defendants claim that Defendant Cary Corporation, a Delaware corporation with its principal place of business in New Jersey, changed its name to Masco Contractor Services East, Inc., which remains a Delaware Corporation with its principal place of business in New Jersey. Defendants additionally represent that Masco Contractor Services East constitutes the sole survivor of a merger between Defendants Ameralum, Inc. and American Aluminum and Insulation Co. of Behtlehem, Inc.(Notice of Removal ¶ 8.)
The Declaration of Thomas D. Jarvis was filed with the Court as an attachment to Defendants' Brief in Opposition to Plaintiffs' Motion to Remand
Pursuant to 28 U.S.C. § 1441, "a corporation shall be deemed to be a citizen of any state by which it has been incorporated and of the state where it has its principal place of business."
In response, Plaintiffs have filed a Motion to Remand, followed by an Amended Motion to Remand, arguing that removal is not proper because the allegations in their Complaint demonstrate a lack of diversity jurisdiction. Plaintiffs argue that the Court, in reviewing its jurisdiction, may not look beyond the four corners of their Complaint, which states:
(1) Plaintiffs are citizens of Pennsylvania (Complaint ¶ 1.);
(2) Defendant American Aluminum and Insulation Co. of Bethlehem, Inc., is believed to be, and therefore averred, at all relevant times material hereto a Pennsylvania corporation with its principal place of business located [in Nazareth, Pennsylvania. (Complaint ¶ 2.)
(3) Defendant Masco Contractor Services East, Inc., is believed to be, and therefore averred, at all relevant times material hereto a Delaware Corporation with its principal place of business [in Fair Haven, New Jersey]. (Complaint ¶ 3.)
(4) Defendant Masco Contractor Services East, Inc., t/a American Aluminum and Insulation Co. of Bethlehem, Inc., is believed to be, and therefore averred, at all relevant times material hereto a corporation registered as a fictitious name with the Commonwealth of Pennsylvania with its principal place of business [in Middletown, Pennsylvania]. (Complaint ¶ 4.)
(5) Defendant Ameralum, Inc., is believed to be, and therefore averred, at all relevant times material hereto a Delaware Corporation with its principal place of business [in Middletown, Pennsylvania]. (Complaint ¶ 5.)
(6) Defendant Ameralum, Inc., t/a American Aluminum and Insulation Co. of Bethlehem, Inc., is believed to be, and therefore averred, at all relevant times material hereto a corporation registered as a fictitious name with the Commonwealth of Pennsylvania with its principal place of business [in Middletown, Pennsylvania]. (Complaint ¶ 6.)
(7) Defendant Cary Corporation, is believed to be, and therefore averred, at all relevant times material hereto a Delaware Corporation with its principal place of business [in Fair Haven, New Jersey]. (Complaint ¶ 7.)
(8) Defendant Cary Corporation, t/a American Aluminum and Insulation Co. of Bethlehem, Inc., is believed to be, and therefore averred, at all relevant times material hereto a corporation registered as a fictitious name with the Commonwealth of Pennsylvania with its principal place of business [in Middletown, Pennsylvania]. (Complaint ¶ 8.)
If the Court, as Plaintiffs argue, is not permitted to look beyond the four corners of the complaint, then remand would be appropriate. However, precedent from this District shows that the Court is not so limited. "[T]he law in Pennsylvania is that a district court examining the appropriateness of removal to federal court on the basis of diversity of citizenship may look to both the face of the complaint and the removal petition."Samson v. Allis-Chalmers Prod.s Liab. Trust, No. 90-139, 1990 U.S. Dist. LEXIS 7727at *4-5 (E.D. Pa. Jun. 21, 1990) (citing the Third Circuit's opinion, in Jones Laughlin Steel v. Johns-Manville Sales, 626 F.2d 280 (3d Cir. 1980), for the rule that a case is properly removed to federal court where the basis for diversity jurisdiction is stated in the removal petition but not in the complaint). To hold otherwise would not serve the interests of justice or judicial economy. Pursuant to Plaintiffs' argument, a crafty plaintiff "could always prevent removal . . . simply by careful pleading." Id. at *5-6.
Here, Defendants' petition for removal shows that only one Defendant remains in existence, Masco Contractor Services East, Inc., which Plaintiffs' Complaint alleges and the Jarvis Declaration asserts is incorporated in Delaware with its principal place of business in New Jersey. (Complaint ¶ 3.) In particular, the Jarvis Declaration sets forth the following facts:
(1) On January 4, 2001, American Aluminum and Insulation Co. of Bethlehem, Inc. (a corporation whose nonexistence Defendant does not dispute (Pl's Amended Mot. to Remand at Fn. 1)) merged, along with several other entities into Ameralum, Inc., whereupon the corporate entity American Aluminum and Insulation Co. of Bethlehem, Inc. ceased to exist. (Jarvis Decla. ¶¶ 3-4);
(2) On April 27, 2001 Ameralum, Inc. merged into Cary Corporation, whereupon the corporate entity Ameralum, Inc. ceased to exist. (Id. ¶ 5);
(3) On July 16, 2001 the Cary Corporation changed its name to Masco Contractor Services East, Inc. (Id. ¶ 6); and
(4) Masco Contractor Services East, Inc. is a corporation organized under the laws of Delaware with its corporate headquarters and executive offices in New Jersey. (Id. ¶ 7.)
Jarvis' Declaration supports the assertions in Defendants' Petition for Removal. Additionally, Plaintiffs present no facts to dispute Defendants' assertions. As such, the Court will deny Plaintiffs' motion to remand, finding that only one Defendant, Masco Contractor Services East, Inc. currently exists, and that Masco Contractor Services East, Inc. is a citizen of Delaware with its principal place of business in New Jersey, thereby forming the basis for diversity jurisdiction.
Plaintiffs primarily argue that the Court cannot look beyond the face of their Complaint, which names defendant corporations alleged to be citizens of Pennsylvania. However, the Court has already rejected this argument and need not repeat its reasons therefor.
Plaintiffs also argue, in paragraph thirteen of their Amended Motion to Remand, that Masco Contractor Services East, Inc.'s principal place of business is in Pennsylvania. As evidence of this, Plaintiffs demonstrate to the Court that service was made on Masco Contractor Services East, Inc. in Pennsylvania. However, this argument is undercut by two factors. First, Plaintiffs' own complaint lists Masco Contractor Services East, Inc. as a Delaware Corporation with its principal place of business in New Jersey. (Complaint ¶ 3.) Second, simply because service is made in Pennsylvania does not necessarily demonstrate that the corporation is a citizen of Pennsylvania. The Rules of Procedure in Pennsylvania allow service to be made on a corporate defendant by the delivery of service to the "manager, clerk or other person for the time being in charge of any regular place of business or activity of the corporation or similar entity." Pa. R. Civ. P. 424(2) (emphasis added). By its plain terms, "regular place of business or activity" does not necessarily equate to a corporation's principal place of business. Hence, the Court finds Plaintiffs' arguments regarding the location of Masco Contractor Services East, Inc.'s principal place of business to be unpersuasive.
Finally, Plaintiffs' argue that Defense counsel entered an appearance for Ameralum, Inc. and not another entity formerly known as Ameralum, Inc. (Pl's Amended Mot. for Remand ¶ 12.) However, Plaintiffs' are mistaken. Defense counsel clearly signed the notice of removal on behalf of "Defendant Masco Contractor Services East, Inc. f/k/a Cary Corporation t/a American Aluminum and Insulation Co. of Bethlehem, Inc., and Ameralum, Inc." Hence, this argument does not advance Plaintiffs' argument that the case should be remanded.
The Court further notes that this holding does not prejudice Plaintiffs' rights. The Court's subject matter jurisdiction is always subject to review. Hence, if, through discovery, it becomes evident that the Court has erred, Plaintiffs may move to dismiss for lack of subject matter jurisdiction.
In line with this holding, the Court will Order Plaintiffs to file an Amended Complaint, within fourteen days of the date of this Memorandum and Order, setting forth their claims against Masco Contractor Services East, Inc.
This renders as moot Plaintiffs' Praecipe to Enter Default and Defendant's Praecipe to Strike Plaintiffs' Praecipe to Enter Default. Thus, both Praecipes will be denied as moot.
An appropriate Order follows.
ORDER
AND NOW THIS day of May, 2004, it is hereby Ordered that:(1) Plaintiffs' Amended Motion to Remand (Docket No. 7) is DENIED;
(2) Plaintiffs will, within fourteen (14) days of the date of this Memorandum and Order, file an Amended Complaint setting forth their claims against Masco Contractor Services East, Inc.;
(3) Plaintiffs' Praecipe to Enter Default (Docket No. 12) is DENIED as moot; and
(4) Defendant's Praecipe to Strike Plaintiffs' Praecipe to Enter Default (Docket No. 13) is DENIED as moot.